Will the Supreme Court strike down affirmative action in education once and for all?

In 2008, two young women with similar academic records applied to the University of Texas at Austin for spots in the freshman class. One of the women, Abigail Fisher, was rejected. The other, Tedra Jacobs, was accepted. Fisher is white. Jacobs is black. Fisher sued, saying the university’s admission process was discriminatory. Now, her case is before the Supreme Court, which will hear arguments today. The decision, which may be issued as late as next summer, could set new limits on the use of racial preferences in higher education, or even ban affirmative action outright.

Tedra Jacobs was admitted to the University of Texas-Austin in the same year the school rejected Abigail Fisher, who is now taking a lawsuit claiming discrimination to the Supreme Court. (Photo by Sarah Garland)

“It could have been me who took her spot,” says Jacobs. She is not apologetic, and neither is the university. Admitting students like Jacobs through affirmative action is part of the school’s strategy to ensure that that the next generation of leaders is more representative of the nation’s diversity than the last one. (There may be a black president in the White House, but there are no African Americans and only two Hispanics in the Senate.)

The court’s decision in Fisher v. University of Texas could deal a major blow to efforts to promote racial diversity in education. In a 2007 decision, the court already significantly restricted the use of race in elementary and secondary school assignments; now, only a handful of districts around the nation actively attempt to integrate their schools, and racial separation in schools is back to levels not seen since the 1950s. The decision to take up the Fisher case suggests the justices may be willing to reverse precedents in a 2003 University of Michigan case and the 1978 Bakke decision, which both upheld the use of race in college admissions.

The case has revived long-simmering battles over whether racial preferences are good or bad policy. Proponents of affirmative action say limiting preferences could be devastating for non-white students, who have made strides in achievement in recent years—including big increases in higher education enrollment and smaller increases in graduation rates—and could see their representation in elite schools plummet. (Affirmative action is an issue mainly for the nation’s top schools, where competition for spaces is more intense than for lower-tier institutions.) They cite dozens of studies supporting their cause, including a 2000 book-length study by the former presidents of Harvard and Princeton, and examples like California, which banned affirmative action and experienced major drops in the number of minorities at the state’s flagship institutions.

Their opponents cite some new evidence suggesting that affirmative action programs may actually harm the students they were created to help. Their main concern is the problem of “mismatch,” a theory that argues affirmative action allows many black and Hispanic students access to elite schools despite lower test scores, where they then suffer as they struggle to compete with their white and Asian peers. A recent Atlantic piece by Richard Sander and Stuart Taylor Jr. argued that after California’s ban, graduation rates for black students actually doubled — suggesting that the students admitted under affirmative action hadn’t been a good “match” for the challenging California system.

The return of affirmative action to the national spotlight also raises a larger question: Are the nation’s top higher education institutions actually producing a set of new leaders who represent America’s increasing racial and ethnic diversity? Or, put more simply, are they doing all they can to improve outcomes for disadvantaged minority students? While much evidence suggests black and Hispanic students perform better if given a chance to go to competitive schools, they still lag behind white and Asian peers on critical measures like graduation, even at the best colleges. If those numbers don’t change, it may be a long time before the faces of the nation’s elected officials, business executives, and university faculties mirror the rest of the population.

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The University of Texas has partly defended itself in the Fisher case by arguing that Abigail Fisher’s test scores and grades were too low for her to be eligible for admission, even if she had impressed the school with personal characteristics like leadership or perseverance in the face of adversity. But Fisher, who was rejected, and Jacobs, who got in, were similarly positioned when it came to academics. Both Fisher and Jacobs attended well-regarded suburban high schools in Houston, earned good grades, and graduated near the top of their classes, although Jacobs’ SAT score was nearly 100 points higher than Fisher’s.

Minority students at the University of Texas-Austin have higher graduation rates than at less-selective institutions, but the rates are still lower than those for white students. (Photo by Sarah Garland)

The SAT points likely made a difference, but Jacobs was admitted on a probationary basis—which required her to attend a summer program before her freshman year—suggesting the university wasn’t completely satisfied with her academic background. Jacobs’ racial and economic background fit other criteria the university wanted as it tried to build a diverse freshmen class, however.

Fisher grew up in a two-parent, middle-class home, according to Edward Blum, an affirmative action opponent and family friend of the Fishers, who have avoided the news media. Both of her parents graduated from UT. Jacobs, in contrast, grew up poor, the daughter of an African-American single mother, in a family in which no near relations had graduated from college. Before she entered kindergarten, her mother joined a scatter-site housing program for low-income families that helped them to rent a home in the suburbs. Jacobs’ siblings had attended struggling inner city schools, where most of their fellow students were also black and poor. Her older sister dropped out of college and got pregnant; her older brother went to jail.

But even in the suburbs, Jacobs faced obstacles. In her first year at school, a teacher decided Jacobs was slow and should be held back. Her mother fought against the decision, and eventually she was elevated to gifted and talented classes. Her peers had parents with college degrees and strict rules about homework; Jacobs didn’t have a bedtime and often did her homework in the morning before school. But she had smarts and a competitive streak, and she continued to excel. “I don’t consider myself a victim, but I have been disadvantaged so I had to work that much harder,” Jacobs says. “I never got a head start in anything because my parents exposed me to it beforehand.”

Perhaps if she had received more guidance about how to succeed academically, she would have been automatically admitted to her top choice school, UT-Austin. After a 1996 court decision banned affirmative action in the state, Texas legislators found a more roundabout way to boost racial diversity at the state’s public universities. They passed a law in 1997 requiring schools to guarantee admission to the top 10 percent of the graduating class at every public high school in the state. Given the extreme racial segregation in Texas secondary schools, this resulted in a fairly diverse class of freshman each year.

The university was unsatisfied with the legislature’s substitute for direct racial preferences, however, saying the level of diversity the percent plan produced was not sufficient. In 2011, only a quarter of UT-Austin’s students are underrepresented minorities, while the state as a whole is 50 percent black and Hispanic. But UT-Austin’s black and Hispanic enrollment is up from 15 percent in 2001. The university further revamped its admissions process after a 2003 Supreme Court case found that universities could consider race as long as it was a small factor among many in a “holistic” admissions system. The vast majority of applicants continued to be admitted under the 10 percent program; for the remaining group, admissions officers added race back to a list of considerations that also included involvement in clubs and student government.

It’s unclear how much of a difference Tedra Jacobs’ race made in the university’s decision to accept her. “What I think is the beauty of holistic review is that I can’t tell you what was the tipping point for her,” says Kedra Ishop, the vice provost and director of admissions at UT-Austin. “Was it her low-income status? Was it her excelling in the classroom? Was it the robustness of her résumé? Was it the fact that she was African-American? It was all of those things.”

Jacobs has maintained her impressive academic record at UT-Austin. She is staying on an extra year to complete pre-med requirements as she finishes her double major in African-American studies and economics. Jacobs’ story offers evidence that affirmative action can open doors that might otherwise be closed to minority students, but it also begs the question of whether her success is the exception or the rule.

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In her majority opinion for Grutter v. Bollinger, the 2003 Supreme Court case that upheld the use of race in admissions at the University of Michigan Law School, Justice Sandra Day O’Connor wrote that “numerous studies show that student body diversity promotes learning outcomes.”

Since then, researchers have been busy producing new, better-designed studies that bolster this finding. A legal brief signed by national groups – including the American Educational Research Association (AERA), the American Statistical Association, and the American Sociological Association – cited more than 50 studies published since 2003 supporting the idea that “diversity leads to important educational benefits,” according to the brief.

“The science was and is compelling,” said Felice Levine, the director of AERA, at a panel held at the National Press Club in Washington, D.C. two weeks before oral arguments in the Fisher case. “It is simply not accurate to present the knowledge as either/or.”

Research has found that both white and nonwhite students at schools with diverse populations become better critical thinkers, less prejudiced individuals, and better citizens who are more likely to volunteer or give to charities. Proponents of affirmative action most often cite data showing that black and Hispanic students tend to perform better if they enroll in more, rather than less, selective institutions—suggesting that racial preferences that give minority students access to top schools they might not otherwise get into actually propel them ahead.

Despite these findings, racial gaps in outcomes still exist. In Ivy League schools, six-year graduation rates for blacks and Hispanics tend to lag slightly behind those of whites and Asians (although often by only a couple of percentage points). At public flagships, which tend to have fewer resources for supporting struggling students, especially after budget-tightening during the recession, the gaps are worse: At UT-Austin, for example, 66 percent of blacks graduated within six years in 2010, compared to 83 percent of whites.

A small but vocal minority has seized onto such data over the last decade. “The guys who are arguing that mismatch is a hoax are being dishonest,” says Richard Sander, who is a law professor at the University of California-Los Angeles and one of the main proponents of the theory. Sander’s own research on mismatch has been called into question by his peers—including several nationally prominent statisticians who submitted a brief to the Supreme Court this year devoted almost exclusively to picking apart his work. But Sander has also mustered the work of others to support his argument that minorities are harmed by affirmative action as now practiced.

In one controversial study published last year, a Duke University economist, Peter Arcidiacono, found that while black students at Duke are able improve their grades relative to white students over the course of their college careers, they are also much more likely to switch out of tougher majors in the natural sciences and into easier majors in the social sciences or humanities. (The findings may not carry over to other institutions: According to Michael Marder, a physics professor at UT-Austin, the school’s black students are more persistent than whites in natural-science majors.)

“You’re getting this trade-off shifting students to the more selective institutions,” Arcidiacono said at a September panel organized by Sander and hosted by the Brookings Institution in Washington, D.C., to present new research supporting mismatch. “Maybe it’s more important that Harvard is more diverse than a university more toward the bottom, but those trade-offs have to be made absolutely clear.”

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For Jarius Sowells, an African-American student from Dallas, the transition to academic life at UT-Austin was much more difficult than it was for Tedra Jacobs. Sowells, like many black and Hispanic students in the country, attended a high school that was made up mostly of minority and low-income students. “More than half dropped out,” Sowells says of his classmates. “Overall, the teachers had apathetic attitudes.”

Jarius Sowells struggled after being admitted to the University of Texas-Austin, and says the school should have provided more support. (Photo by Sarah Garland)

Sowells graduated in the top 10 percent of his class and was automatically admitted to UT-Austin, his top choice. He planned to major in business. But Sowells didn’t know what to expect on his first day of college classes. His older brothers, who are twins, had enrolled in much less selective colleges, and neither of his parents had earned more than a high school diploma. “I don’t think my high school prepared me very well to begin learning at this institution,” Sowells says. “It was a culture shock. I was around people who didn’t look like me, didn’t talk like me.”

He signed up for several tough classes his first semester—microeconomics, business foundations, introduction to psychology, and rhetoric. Within weeks he was failing. “I psychologically broke down,” he says. “I felt I couldn’t handle it.” The following semester he dropped out and returned home.

He didn’t give up completely, however. The following fall he was readmitted on probation. He began to build up his GPA, which is now a 2.7. He dropped his aspirations of majoring in business and switched to African-American studies. His plan is to become a lawyer; he’s counting on getting a high LSAT score to make up for his low grades. He thinks his persistence in the face of obstacles proves he has what it takes to go far.

Critics of affirmative action might look at Sowells’ story as an example of the inherent problems with racial preferences in admissions and argue that for many minority students, catching up in college after 12 years of substandard education in elementary and secondary school is too much to ask. We should start by reforming K-12 schools first, they say.

UT-Austin administrators and their supporters at other institutions would likely disagree, but the school also complains in its Fisher brief that the Top 10 Percent plan takes away its discretion to decide whether the Sowells of the world are really prepared to succeed on its campus. The plan “‘hurts academic selectivity’ by basing the admissions decision solely on class rank, without regard to other standard markers of academic achievement and potential,” the university wrote in its Supreme Court brief.

But Sowells himself sees his story differently. He thinks his UT-Austin diploma will give him a better start in life than a diploma from a less selective school like UT-Arlington—where only 42 percent of blacks graduate within six years—even if his grades aren’t as high. And if he struggled at UT-Austin, he says, it’s not because the school should never have let him in; it’s because it should have taken more responsibility for helping him succeed. He wishes someone had advised him against stacking up so many hard classes in his first semester, for example, or told him where to get assistance when he started to fall behind. “I think they could have done a lot more to help me,” he says.

This year, the university hosted several orientations aimed at minority freshmen before the school year began, including one in which black and Hispanic sorority and fraternity members performed skits about good study habits for the newcomers. The school also offers free tutoring and other help, including mentoring, for struggling students.

“Student success is an issue that we give a good deal of attention,” said Gretchen Ritter, UT-Austin’s vice provost for undergraduate education and faculty governance, in an emailed statement. “Adjusting to college life and academic expectations is a big transition for all of our students, but it can be particularly challenging for first-generation and minority students.”

The school is not alone in its struggles to close gaps for minority students. But some worry that the debate over affirmative action has obscured questions about whether universities are really doing enough to ensure that students like Sowells are not only getting access to top schools, but also succeeding there. Glenn Loury, an economist at Brown University who submitted a friend-of-the-court brief in the 2003 case supporting affirmative action, believes racial preferences are necessary because selective colleges and universities “are elite-shaping institutions, and in a country with our history and our demography, we want those elites to be representative.” He also believes the evidence on mismatch should be taken more seriously, but not to support an end to affirmative action. “It might mean that you do affirmative action differently, not that you don’t do it at all,” he said. At the same time, Arcidiacono said his research on minority students at Duke suggests that perhaps “colleges need to invest more to make sure they graduate.”

Supporters of affirmative action don’t disagree. Lee Bollinger, president of Columbia University, was the named plaintiff in the last anti-affirmative action lawsuit to reach the court, in 2003. (He had been president of the University of Michigan.) “Yes, higher education should be doing more than it’s doing to realize the educational benefits of diversity. That’s absolutely right,” he said. “But that’s in my view not a reason against affirmative action, it’s a reason for doing more.”

As the court’s frequent swing vote, Justice Anthony Kennedy will most likely decide the outcome of the Fisher case. Kennedy has been wary of affirmative action in the past—in particular, he disapproves of racial quotas.

Unlike his more conservative colleagues, however, he has not been completely hostile to the idea of racial preferences. It’s possible that he will decide the Texas Top 10 Percent plan is sufficient to create some racial diversity and that additional efforts are unnecessary—a ruling that might have little impact on other institutions. But even if he does agree with the University of Texas—that considering race is the best, most efficient way to ensure a diverse student body—the school and other institutions in its class will still have work to do to make sure that that the graduates who go out into the world, ready to take up the reins of power, are racially diverse, too.

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